What is PAF?
The PAF is a file that an employer must create and maintain for each H-1B, H-1B1, and E-3 employee. This file must be created, within one working day of submitting the Labor Condition Application (LCA) for the H-1B, H-1B1, and E-3 employee. It must be available for public inspection, as well as inspection by the Department of Labor (DOL), either at the employer’s principal place of business or the actual location of employment.
Documents to be included in a PAF
1. The LCA (Form ETA 9035 and/or ETA 9035E);
2. Rate of pay for the employee;
3. Description or summary of the actual wage system;
4. Prevailing wage rate and its source;
5. Documentation that the notice requirement was satisfied;
6. Summary of benefits offered to U.S. workers and H-1B workers;
7. List of entities included as a “single employer”.
In the event of corporate change inheriting entity should maintain the below mentioned documents:
1. Sworn or notarized statement by successor entity accepting all liabilities of predecessor entity;
2. List of H-1B workers transferred to successor entity;
3. Each affected LCA number and effective date;
4. A description of successor entity’s actual wage system; and
5. Successor entity’s employer identification number.
Additional records maintained by an H-1B-dependent or willful violator employers
1. List of “exempt” H-1B nonimmigrant workers; and
2. Summary of recruitment methods, if employer hired any “non-exempt” H-1B nonimmigrant.
PAF Retention
• The employer must keep the PAF for a period of one year beyond the date of employment.
• PAF should be kept for one year if the employer withdraws an LCA.
Employers should review the PAF’s periodically. In the event of DOL audit, there can be potential direct penalties for violating the PAF requirements. Penalties can be monetary or it can be civil and/or criminal investigations from government agencies involved in the H-1B process.
FAQ
Are H-1B employers required to provide copies of documents to the public?
No. But any member of the public requesting access to the documents must be allowed to capture the information through such means as transcription, scanning, or taking photographs.
How should the employer maintain the PAF’s?
Employers can choose to store their PAFs either physically (at the employer’s principal place of business or at the worksite) or electronically.
By, Mathews Theruvapuzha, Senior HR Manager – Global Immigration, RapidValue Solutions
